special report

Gov. Cuomo’s Clemency Out of Grasp for Many Behind Bars

Governor Andrew Cuomo, June 17, 2019.
Governor Andrew Cuomo, June 17, 2019. Photo: Ben Fractenberg/THE CITY

Gov. Andrew Cuomo’s clemency program is leaving prisoners and their attorneys so frustrated at what they call slow progress that some law firms are reluctant to tackle new cases.

State prisoners have submitted at least 6,489 applications for reduced sentences since 2016 after the governor announced a more merciful approach to dealing with requests, records obtained through a Freedom of Information Law filling show. The overwhelming majority of inmates, many of them serving life terms, made just a single application.

Cuomo has so far granted 18 commutations, shortening sentences to either provide for incarcerated people’s release or to make them eligible for parole hearings. In the most prominent case, Cuomo visited Brinks robbery driver Judith Clark at Bedford Hills Correctional Facility before granting her application in late 2016.

“We are seeking to identify those deserving of a second chance and to help ensure that clemency is a more accessible and tangible reality,” he announced in a statement in October 2015, as he commuted the drug sentences of two prisoners, Lydia Ortiz and Michael Correa — his first commutations since taking office in 2011.

Cuomo separately has issued 66 pardons to prevent deportation, 44,099 conditional voting pardons, and 137 youth pardons during his two-plus terms.

At the time of his announcement, Cuomo’s administration and lawyers’ associations planned to work together to find pro bono attorneys to help prepare applications. Two top Manhattan law firms, Kramer Levin Naftalis & Frankel and Patterson Belknap Webb & Tyler, stepped forward to offer their lawyers’ services free of charge.

The legal help would be crucial: Sixteen of the 18 clemency actions were secured by prisoners represented by attorneys, state records indicate. Yet most prisoners struggle to find legal representation amid a deluge of applications and what lawyers call a slow process.

‘We Became Deflated’

Some 380 commutation applications have been accepted by pro bono attorneys since Cuomo’s program was launched, according to the state Department of Corrections and Community Supervision.

Lawyers initially excited by the governor’s vow to be more merciful say they’ve since become discouraged by the pace of responses — and some say they’ve begun to avoid taking on new cases.

“We became deflated,” said attorney Katrina Szymborski, who handles the pro bono commutation team at Patterson Belknap Webb & Tyler. “We started to realize maybe we should be focusing our pro bono efforts elsewhere.”

David Loftis, Legal Aid Society’s attorney in charge of post-conviction and forensic litigation, said other firms had similar reservations.

“It became hard for those working on these intensive applications to justify continuing to do a large volume of this unfunded work given the low number of individuals that were actually receiving relief,” he said.

A spokesperson for Cuomo defended the governor’s record on clemency and reiterated his commitment to fair treatment of prisoners.

“While the review process may be lengthy, this administration believes in keeping people out of prison and preventing them from serving unjust ‎sentences if they are incarcerated,” said the spokesperson, Don Kaplan.

Nearly Two Years and Counting

One of Szymborski’s clients, Gordon Davis, has been waiting for nearly two years to get a response from the Executive Clemency Bureau, which reviews applications and sends them on to Cuomo for consideration.

Davis, 40, was convicted of felony murder when he was 16. He’s serving 25 years-to-life in prison — currently at Fishkill Correctional Facility — for his involvement in the death of his foster sister’s ex-boyfriend, who was lit on fire.

In prison, Davis has earned a GED — as well as associate’s, bachelor’s and master’s degrees in literature, according to Szymborski. He’s never had a violent disciplinary infraction while incarcerated, she added.

Lawyers for prisoners say they are waiting on multiple cases, with some dating as far back as 2017. They say many of their clients will likely die in prison unless they are granted a commutation — a shortening of the sentence that allows for an earlier parole hearing or immediate release.

The Clemency Bureau says it responds, in writing, to all prisoners who apply for commutations, according to Rachel Connors, Department of Corrections spokesperson.

‘People Need Help’

But the eight-person Executive Clemency Bureau, a division of the state Department of Corrections, has been flooded with applications for commutations since the governor’s announcement.

Filings skyrocketed to 4,664 in 2016 alone, and the bureau has received a little more than 900 more applications for executive clemency in each of the past two years, according to the department.

When Cuomo announced the clemency push, his top lawyer promised requests would be reviewed four times a year and that prison superintendents would be prodded to recommend worthy applicants.

It is unclear how many applications are still pending. State officials say it will take more than six months to even produce statistics.

To qualify for commutation, an incarcerated person must have served more than one year, at least one-half of the minimum sentence, and not be eligible for parole within one year, according to state guidelines.

Applications prepared by attorneys typically contain hundreds of pages of court and prison records, and can take up to a year to compile. Some include a short video from the prisoner describing how they have changed behind bars.

Prisoners also often undergo a risk assessment, determining the likelihood they will commit crimes again. Application often include a detailed post-prison living plan.

Under Cuomo’s clemency initiative, the Department of Corrections funneled all applications to the city and state bar associations, the state and national associations of criminal defense lawyers, and the Legal Aid Society. Those groups looked for attorneys willing to assume the cases pro bono.

Meanwhile, thousands of applications came in without professional aid. Legal experts and advocates suspect that many prisoners, desperate for any chance at a life-changing opportunity, simply send in a few pages describing their case.

“People need help. They need guidance,” said Steve Zeidman, director of the Criminal Defense Clinic at the CUNY School of Law.

Looking for a Lawyer

Zeidman, with his team of 40 law students, represented four of the seven prisoners who were granted commutations late last year. He has about 15 applications currently pending before the clemency bureau and another 15 in the works.

Meanwhile, he says he’s received 1,800 requests for aid over the past several years. Zeidman is working on creating a nonprofit dedicated to assisting more prisoners.

Steve Zeidman, director of the Criminal Defense Clinic at the CUNY School of Law, said he’s received more than 1,800 letters from from New York State prisoners asking for help attaining clemency or parole, July 24, 2019.
Steve Zeidman, director of the Criminal Defense Clinic at the CUNY School of Law, said he’s received more than 1,800 letters from from New York State prisoners asking for help attaining clemency or parole, July 24, 2019. Photo: Ben Fractenberg/THE CITY

“Someone should be helping them so that they meet the requirements,” he said. “Not everyone in prison has the education how to do this correctly.”

Former prisoner Roy Bolus leaned on his wife, Ada, for help before trying to get a lawyer.

Bolus had been sentenced to 80 years to life for a felony murder conviction committed when he was 18.

At first, he wasn’t able to get a lawyer to assist with the clemency plea. His wife reached out to Zeidman and asked if he could he at least write a cover letter for Bolus’ application to give the filing more credence.

Zeidman agreed, but it made no difference.

Over the next year, Zeidman dug into the case and supplemented the application with more material — including an executive summary and a video of Bolus describing how he had changed and expressing his remorse for what happened.

That apparently did the trick.

Former prisoner Roy Bolus was sentenced to 80 years to life for a felony murder conviction committed when he was 18 years old. Gov. Andrew Cuomo commuted his sentence in 2018.
Former prisoner Roy Bolus was sentenced to 80 years to life for a felony murder conviction committed when he was 18 years old. Gov. Andrew Cuomo commuted his sentence in 2018. Photo: Courtesy of Roy Bolus

On Dec. 31, Bolus and seven other men in state prison, were granted commutations.

Bolus, 49, from New Paltz, was scared to leave his cell as he waited two weeks to be released.

Everyone he encountered in the facility wanted to know how he got the break.

Many told him they were unable to get pro bono legal assistance before submitting their own applications, he said.

“It’s very difficult,” Bolus said. “For the most part, a lot of them are not knowledgeable.”

Governors’ Records Vary

Prisoner advocates say Cuomo’s record on commutations pales compared to those of some other governors.

Former California Gov. Jerry Brown commuted 154 sentences during his 16 years in office.

In New York, Gov. Hugh Carey granted 155 commutations during his two terms as from 1975 to 1982. Cuomo’s father, Mario Cuomo, issued 37 commutations during his three terms in office from 1983 to 1994.

Andrew Cuomo’s spokesperson said such comparisons were unfair. The prison population has declined by nearly 10,000 — or about 17% — since Cuomo took office in 2011, Kaplan noted. New York had 45,968 prisoners as of Friday.

“Attempting to compare this administration’s record to our predecessors’ far more draconian approaches to incarceration, clemency or pardons is like comparing apples to bicycles,” Kaplan said.

Still, criminal justice advocates want Cuomo — and lawmakers — to do more.

Frustrated by the lack of commutations, a group has pushed the state Legislature to pass a measure that would automatically grant parole hearings to all prisoners when they turn 55, if they have served 15 years or more.

It would give thousands a chance at freedom. The bill stalled in Albany last legislative session.

Research shows there’s little chance of recidivism for elderly prisoners. Criminologists say the likelihood of a person committing murder drastically decreases at about age 40, and that about 1.5% of murders each year are committed by people age 75 and older.

In California, of the 860 homicide offenders released from prison since 1995, only five have returned for any offense, according to a Stanford University study.

Cuomo also has taken heat for not freeing more women who committed their crimes against their alleged abusers.

Kelly Forbes, who strangled her husband to death with an electrical cord on Thanksgiving in 2007, is one of those women seeking mercy. She says she acted in self-defense after months of abuse in Merrick, L.I.

Theresa Debo also is seeking clemency. She was sentenced to 21 years to life for fatally shooting her boyfriend in their Oswego County home in 2004.

Debo testified during the trial that her boyfriend, Richard Moore, repeatedly beat her — including the night she used his .44-caliber Magnum revolver to fatally shoot him during a fight in their living room.

A Second Chance

Gordon Davis has been in prison for over 23 years since walking away from a time-served plea deal in exchange for cooperating with prosecutors.

When he was 7, he entered foster care, where he says an adult there sexually abused him. Davis’ foster sister, Sheron Thomas, who was 15 years older than him, protected him and became one of the few people he trusted, according to his lawyer, Szymborski.

Just after Davis’ 16th birthday, he says his sister told him her boyfriend was beating her. Thomas asked Davis and another foster brother, Shamel Thomas, to confront the man, Frank Thomas Olivieri on July 27, 1995.

Davis and Shamel Thomas, who used a baseball bat, beat Olivieri, 26, and robbed him of $16, according to authorities. They raced off right before Sheron Thomas doused her ex in gas and set him on fire, according to a petition opposing her parole.

The Suffolk County prosecutor handling the case initially offered Davis time served in exchange for his testimony against his foster sister, Szymborski said. He agreed, but midway through his testimony, his foster sister began to cry, and Davis froze, according to Szymborski.

“He felt he was hurting the only person who ever showed him any love, and could not continue his testimony,” said Szymborski, noting that Davis now recognizes the domestic abuse allegation was likely untrue.

The prosecutor rescinded the deal and tried him as an adult.

His commutation application, submitted in November 2017, is pending.

Christine Gleeson, an older sister of the victim, is vehemently opposed to his release.

“My brother never beat Sheron Thomas,” Gleeson said. “Davis is trying to paint himself as some sort of a victim. Nothing could be further from the truth.”

Szymborski points out that Davis does not deny his involvement in the case or his culpability.

“Clemency is about taking responsibility and asking that the governor look at that person today and the strides they have made in prison,” she said. “It’s a focus on the present day.”

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